INCHOATE OFFENCES:

1. Attempt
2. Conspiracy

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 INTRODUCTION
 Inchoate offence: Offence committed by doing
an act with the purpose of effecting some other
offence.
 Fletcher – “An offence relative to the offence-
in-chief”

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attempt

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 Introduction
 “An intentional act which a person does
towards the commission of an offence but
which fails in its object through circumstances
independent of the volition of that person” -
State of U v Ram Charan AIR (1962) All 359

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Guilty Preparation Attempt
CRIME
mind !!!

Eg.: Thiangiah & Anor v PP [1977] 1 MLJ 79

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  The Penal Code have general & specific approach
dealing with the issue of attempt:
i. Commission of an offence & the attempt to commit it
are dealt with in the same section, and extent of
punishment is similar for both – ss. 121, 377A, 385, 386
ii. Attempts for committing specific offences are dealt
with side with the offences but separate punishment –
ss. 307, 308, 393
iii. General provision to cover cases falling outside the
prior two categories – s.511

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 s.511, PC
Whoever attempts to commit an offence punishable by this
Code or by any other written law with imprisonment or
fine or with a combination of such punishments, or
attempts to cause such an offence to be committed, and in
such attempt does any act towards the commission of such
offence, shall, where no express provision is made by this
Code or by such other written law, as the case may be, for
the punishment of such attempt, be punished with such
punishment as is provided for the offence:
Provided that any term of imprisonment imposed shall not
exceed one-half of the longest term provided for the
offence.

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  s.511 does not define an attempt. It only states what
attempts are themselves offences.
 Before an attempt is itself an offence it must satisfy two
conditions:
1. It must be an attempt to commit an offence punishable
by the Code or by any other written law.
2. There must be an act towards the commission of the
offence.

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 s.511 applies to attempts for offences that are
punishable with imprisonment & fine
 It only applies to offences which are not
covered by express provision

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 Elements
1. The accused intended to commit an offence, or
attempted to cause such offence to be committed
2. The accused did some act towards the commission of
that offence

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 Mens rea
 Generally, a person can only be convicted for an
attempt to commit an offence if he has the intention to
commit that complete offence regardless that the
offence can be convicted with knowledge or
negligence.
 Although s.511 does not clearly indicates the
requirement of mens rea, judicial precedent expressly
set such element.
 Eg: R v Mohan [1976] QB 1 (CA, Criminal Division);

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 Attempt is essentially a crime of mens rea as the actus
reus is only secondary in nature. Hence, only the
clearest form of mens rea should be accepted i.e.
intention.
 This approach is also applicable to other specific
attempt provisions where no indication is given as to
the requisite mens rea.
 Eg: ss. 309; 393; 385.
 However, there are differences held by the judges in
distinguishing the requirement (test) of mens rea under
s.511 and attempt under ss. 307 and 308

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 S.511 SS.307 & 308
 The provision is silent on  Specify the required mens
the required mens rea rea – intention or
knowledge
 There must be an
intention to commit the
 The mens rea of attempted
murder or culpable
complete offence
homicide is the same as that
 Eg: Abhayanand Mishra of murder itself.
AIR [1961] SC 1698; State  Eg: Om Prakash v State of
Maharashtra v Mohd Punjab, PP v Edmund
Yakub [1980] SCC (Cri) Jammy Ngali, PP v Ong
513 Poh Chen

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 Actus reus
 It is not easy to prove – it is not entirely clear when an
act constitutes an essential ingredient of “attempt”
 It must be shown that the act was done at any stage of
the commission, proximate to the commission of the
offence
 Test: based on fact and common sense – depend on the
circumstances
 What is required is that an accused must have
proceeded beyond the stage of preparation

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 Attempt vs. Preparation
 Mere preparation for the intended crime before the
actual commencement of the offence itself does not
amount to an attempt.
 Attempt involves certain degree of “proximity” to the
commission of the offence.
 Attempt to commit an offence can be said to begin
when the preparations are complete and the offender
commences to do something with the intention of
committing the offence or a step towards the
commission of the offence.

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 Test
 There is no definite principle to determine
proximity of an act with the commission of an
offence.
 However, based on precedents, court have
adopted various approaches to test the
proximity
 (refer to textbook pp. 992 - 997)

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1. The accused’s action must be proximate to the
completed offence – he must be beyond the stage of
mere preparation
 R v Eagleton, Thiangiah v PP
 Mohd Ali Jaafar v Public Prosecutor [1998] 4 MLJ 210 -
There was sufficient evidence to show that the
appellant had attempted to obtain sexual favours from
the complainant. There were steps taken towards the
actual commission of the offence.
 Distinguish with PP v Zainal Abidin bin Ismail &
Harischandra Narayan Khardape v State of
Maharashtra
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2. Equivocality test – Actions revealed with certainty the
intention of the accused to commit the offence
 State Maharashtra v Mohd Yakub [1980] SCC (Cri) 513
 PP v Kee Ah Bah [1979] 1 MLJ 26

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3. “Last act” test – all the acts necessary to commit the
substantive offence must be done
 Although this test is said to be rejected by precedents,
the existing provisions under s.307 suggested the
applicability of the test
 Eg: Om Prakash v State of Punjab; State of Maharashtra
v Bairam Bama Patil
 Illustration (c) and (d)

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 ATTEMPT TO CAUSE
ATTEMPTED MURDER
GRIEVOUS HURT

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 Attempt of impossibility
 An attempt to do something which is not an offence is not
punishable. However, in Malaysia, impossibility of
performance still tantamount to an attempt to commit an
offence.
 Illustration (a): “A makes an attempt to steal some jewels
by breaking open a box, and finds after so opening the box
that there is no jewel in it. He has done an act towards the
commission of theft, and therefore is guilty under this
section.”
 Illustration (b): “A makes an attempt to pick the pocket of
Z by thrusting his hand into Z’s pocket. A fails in the
attempt in consequence of Z’s having nothing in his
pocket. A is guilty under this section.”
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  There are several types of impossibility:
1. Physical impossibility – it is physically impossible for
the accused to commit the offence, regardless of the
means he adopted.
2. Legal impossibility – Accused has done everything he
means to do but in fact, and unknown to him, what he
has done does not amount to a crime
3. Impossibility due to ineptitude – the offence is
impossible to be committed due to the accused inability,
inefficiency or he adopted insufficient means.

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CONSPIRACY

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